HaTikvah – A Hopeless Copyright Case

“Hatikvah” הַתִּקְוָה‎‎, literally, The Hope is the national Anthem of Israel. Written by Naphtali Herz Imber, a galician Jew, who moved to the Land of Israel in the early 1880s. The anthem’s theme revolves around the nearly 2000-year-old hope of the Jews to be a free and sovereign nation in the Land of Israel.

Franky Perez, a French singer, producer and songwriter, released a version of Hatikvah, Israel’s National Anthem, in February 2008, for Israel’s 60th Anniverary Celebration in 2008. In May that year, El Al, Israel’s national air carrier, produced a version of the Hatikvah for use as an advertisement.

Perez sent El Al his version before they produced their advertisement. Claiming that El Al had copied his version, Perez claimed copyright infringement and sued for damages and for production of sales receipts.

The similarity, according to the statement of case, lay in a list of elements including, inter alia, the rhythm, beat, tone, use of a black choir, a black soloist, a rap rhythm, the Israel flag, the camera angles, the halos of the singers, the almost identical clothing of the choir, fading to black, various lighting effects including flares, similar clothing worn by the singers, etc.

The plaintiff did acknowledge that the words themselves, and the music, were in the public domain and withdrew charges that the idea was copyright protected.

Perez produced evidence of having given a copy of the clip to an El Al employee, Ms Michelle Richie, who forwarded it to Mr Zacharia, the Head of Marketing at El Al. This was not denied by El Al who admitted having been shown Perez’ clip, but considered it indicative of what they didn’t want. They claimed to have been working on the HaTikvah advert concept prior to receiving the clip, but admitted to only starting filming afterwards.

Presiding Judge Hadas Ovadia listened to the expert witnesses of both sides and also watched and listened to the recordings. She concluded that as would be expected with orchestrations and videos of the same words and melody, there were some common elements, but the recordings, taken as a whole, were substantially different, and dismissed the charges.

She cited extensively from the cross-examination of the expert witness of the complainant, who was apparently inadequately prepped, and admitted that there were a lot of significant differences and who stated that the expert witness of the defendant was an authority.

For good measure, she ruled that the original production was a work for hire produced by Peretz for a company called Blast Production, now defunct, and consequently Perez had failed to establish ownership of the creation and legal standing.

Finally, she related to the clips holistically, and explained that Peretz’ version was a rap, produced by Broadway singers, that featured African-American gospel singers in cassocks, and had a universalist theme. In contradistinction, the El Al advertisement invoked the ingathering of the exiles, and featured Jewish singers from different countries singing in different styles, the Russians in operatic style and Oriental Jews in Mizrachi (Arabesque) style. The black singers in the El Al advert were Ethiopian in traditional white gowns and were featured as a self tribute to EL Al’s role in Operation Moses and Solomon where all records for the number of passengers that could be crammed into a Boeing 747 were broken. Judge Ovadia also noted that El Al had stayed faithful to the words, whereas Perez had included additional lyrics in English and made some other changes.

In addition to dismissing the charges, she ruled NIS 12,000 costs to El Al.

I think this judgment is correct. I don’t think there is copyright infringement here. I don’t think El Al plagiarized Peretz’ version. I don’t even think it was inspired by it.

I can imagine that those of a politically correct persuasion might be offended by the underlying assumption in comparing Afro-American gospel singers with Ethiopians, that all blacks look the same. Factually this is not true and Peretz’ singers do not look Ethiopian, whereas El Al’s clearly do. One wonders if a similarity between renditions such as Caucasian men would have been claimed.

Personally, I think the Israel Anthem should be Psalm 126 set to Imber’s music, but then again who cares what I think?

Whilst tracking down the links, I ran into various other renditions of the Hatikvah. The most moving was a BBC Radio broadcast from 1945 that includes a rendition of Hatikvah from the end of the first Friday Night Service held at the newly liberated concentration camp Bergen-Belsen. Note the variant words to Hatikvah. The service was conducted by the Late (Great) Reverend Leslie Hardman, then British Army Chaplain.

I have fond memories of Reverend Hardman Zt”l. I was a congregant in Hendon United Synagogue, London where he ministered until his retirement, and where he continued to preside over the Annual Jewish Ex Servicemen Shabbat for many years afterwards, as much an institution as Dame Vera Lynn.

I’ve also viewed both copies. Personally, I think the judge is correct. The issue here is copyright infringement. Even if ElAl’s creation was inspired by Peretz, that does not neccessarily create copyright infringement.

It is certainly not pure copy. That’s what people do when downlading and saving clips, photocopying and making backup disks.

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Just watch Francky Perez’ unique video HATIKVAH a couple of times and compar with El Al’s HATIKVAH: It’s obvious El Al must have been under time pressure until Yom Haatzmaut that year and simply plagiarized the original version. The lighting effects are a main component in Peretz’ video. One clearly can find them 1:1 in El Al’s production.

I don’t think the Perez claim of copyright infringement even has standing. The only obvious similarity between the two videos is that Ha Tikvah is sung and they both present some black singers. The judgement made was correct.